Archive for July 2013

Reporting today for the New York Times Charlie Savage describes how Chief Justice Roberts appointments to the FISA court have played a role in creating what critics call the secret“parallel Supreme Court“.

In making assignments to the court, Chief Justice Roberts, more than his predecessors, has chosen judges with conservative and executive branch backgrounds that critics say make the court more likely to defer to government arguments that domestic spying programs are necessary.

Ten of the court’s 11 judges — all assigned by Chief Justice Roberts — were appointed to the bench by Republican presidents; six once worked for the federal government. Since the chief justice began making assignments in 2005, 86 percent of his choices have been Republican appointees, and 50 percent have been former executive branch officials.

As the Obama Administration increases its arsenal of surveillance and secret policing tools it grounds the legality of their use at home and abroad on classified FISA court rulings. Secret rulings have been piling up since the Bush Administration that expand the NSA’s authority to: warrantlessly wiretap phones, collect vast sums of communications data in blanket searches of unspecified targets, justify particular types of surveillance like court ordered handovers of metadata from telecoms and in general broaden the definitions of what constitutes foreign surveillance. These legal rulings are creating a growing body of precedents that legitimate the government’s use of vast spying programs. Without lawyers to challenge FISA court decisions, in the absence of an appeals process and in the shadows of a secret tribunal these judges are defining the sweeping reach of America’s surveillance apparatus and they are doing so shielded from public scrutiny.

The FISA court’s overwhelming majority of Republican and former federal prosecutors makes the complexion of the secret court ideologically uniform. Serving as the sole arbiter on surveillance issues, decisions are being reached without any independent adversarial process to check the powers bestowed to this court. This court is doing more than providing the Obama Administration the legal precedents it requires to carry out its massive surveillance programs. It is forging new relations of power between those with the authority to surveil (the phalanxes of surveillance state officers working both directly for the intelligence and police agencies and as private surveillance subcontractors) and everyone else who will be indiscriminately subjected to surveillance regardless of suspicion of wrong doing. At a time when the FISA court is playing a greater role in both the private lives of Americans and people across the world being secretly surveilled by a foreign government, the extreme bent of the judges to defer decisions on the size and scope of the surveillance state to The Administration is dangerous. The greater role this court has come to play in arbitrating how deeply surveillance will be embedded into human life reflects the power the government has invested it. In turn the FISA court issues secret ruling after secret ruling to bolster The Administration’s power to monitor the lives of its subjects. When courts become tools to legitimate and expand the power of rulers lines are blurred and tyranny consolidated.

Whistleblower Edward Snowden finds himself in a high stakes game of cops and robbers. Snowden is wanted for leaking secret intelligence documents that expose the inner workings of the NSA and the expansion of the surveillance state towards ubiquity. For now Snowden is believed to remain holed up at an airport in Moscow. Meanwhile Congressmen, Senators, and Administration officials aided by the non-adversarial beltway press are screaming traitor and shaping a discourse that discredits him and anyone who stands against the government’s will to try Snowden under the Espionage Act.

Evidence abounds that the United States is working behind the scenes to get its hands on Snowden.

During a press release two weeks ago Obama sought to deflate the significance of Snowden, “I’m not going to be scrambling jets to get a 29 year-old hacker”. Instead The Administration persuaded officials in France and Austria (who at the same time pretend to be in a fury about the US bugging their embassies, information they should be thanking Snowden for divulging) to ground the plane returning President Evo Morales from Moscow due to suspicion that Snowden was aboard flying to Bolivia for asylum. Last week’s scandal has sparked outrage from Bolivians who charge that the US has violated their sovereignty. Other leaders in Latin America have expressed similar indignation also citing that the US’s attempt to intercept Snowden transgresses international agreements that protect asylum seekers.

Commenting on the Obama Administration’s efforts to get Snowden extradited back to the US, Venezuelan President Nicolás Maduro reminded President Obama of America’s history in refusing extradition requests and harboring terrorists:

Who is the terrorist? A government like us, who seeks to serve the young Snowden, a figure of humanitarian asylum, from persecution by the American empire? Or the United States government, that protects with political asylum Luis Posada Carriles, a confessed convicted murderer and terrorist who is wanted by Venezuela for the bombing of the Cuban plane in 1976?

Carriles was not only protected despite calls for his extradition but employed as a CIA operative to assist paramilitaries against the Sandinistas in Nicaragua. Examples of the US protecting internationally wanted terrorists are not limited to Carriles. Haiti’s repeated extradition requests of Emmanuel Constant, former leader of CIA funded Front for Advancement and Progress -the dreaded Haitian death squad played an instrumental role overthrowing the popular government of Jean-Bertrand Aristide in the 1991 US backed coup- were denied by the US. Constant was ultimately tried and sentenced at the New York State Supreme Court for charges unrelated to his alleged crimes against humanity, mortgage fraud. Haitians were effectively denied the possibility of ever seeing the serial killer brought to justice in their courts of law. Then there’s Orlando Bosch, another CIA operative believed to have conspired with Carriles in the 1976 Operation Condor plane bombings. Bosch was also granted safe haven in the United States by Bush I after Costa Rica called for Bosch’s extradition to face terrorist charges.

The US has been calling upon countries to deny Snowden asylum. Despite European leaders spectacle of feigned indignation over NSA eavesdropping in European embassies, all European countries where asylum requests were made have rejected them on legal technicalities. A week ago Vice President Joseph Biden phoned Ecuadorean President Rafael Correa to make the case that Snowden was wanted in the US for aiding the enemy and that Ecuador should cooperate with the US in its efforts to have Snowded extradited.

First, in looking back on America’s complicity in protecting internationally wanted terrorists it becomes clear that it is US policy to defy international law where it impedes US interests and constrains US power. Harboring Carriles, Constant and Bosch clearly violates the September, 2001 UN Security Council Resolution 1373 which states that “countries should not give safe haven or any kind of assistance to people involved in present or past terrorist activities”. In the context of America’s involvement in regime change in Latin America protecting these wanted terrorists was important to the US because each one of them played a vital role in covert operations against leftist regimes the US sought to topple. Carrying out secret dirty wars and installing market friendly, pro-Washington dictators was far more aligned with US interests than adhering to international law. Yet when the US is hell-bent on capturing a target they’ve identified as a threat to national security, in the case of Snowden, someone who has leaked information rather than blowing up planes, and murdering multitudes, it demands that other sovereign nations comply with US laws, both those on the books and those drafted in secret.

Second, the US despite misleading the public with claims to the contrary loves leaks. The example Chris Hayes discussed two weeks back where he takes issue with a report by CNN’s Barbara Starr is illustrative. Starr “wrote a report withinformation leaked to her by anonymous administration and intelligence officials that reveal we know terrorists are changing their methods in response to leaks”. In other words, the Obama Administration distinguishes between good leaks and bad leaks. Good leaks are those that make the President and his Administration, well, look good. Leaks like the New York Times story about how America successfully took down Iranian nuclear centrifuges with the Stuxnet worm and how Obama, by virtue of his preternatural ability to determine good from evil had developed a “kill list” to eliminate terrorists both fall into the good leaks category.

Then there are leaks by whistleblowers like Thomas Drake, John Kirakou, Shami K. Leibowitz, Jeffery Sterling, Bradley Manning, Stephen Kim and most recently Edward Snowden who expose the dark infrastructure of power and call upon the government to answer to their frightening revelations. These are the bad leaks and the Administration has made it known that those responsible for revealing how the government operates behind closed doors will be persecuted.

Third, we can see from the condemnations of whistle blowers by public officials circulating throughout mainstream media that the government works in conjunction with a sympathetic “journalism” industry. Talk shows and radio programs provide the mouthpiece for public officials to frame people like Snowden as unpatriotic traitors in an effort to discredit the information they’ve made public. Vitriolic rhetoric is employed for character assassination. Representative Peter King and Senator Dianne Fienstein have all been played their part denouncing Snowden as vile villain in the latest National Security State directed Broadway spectacular. Noam Chomsky has talked about the kind of smear tactics being employed against Snowed. The government uses them as a tool to “deflect attention from power’s real interests and from those who power serves”. In discrediting Snowden, labeling him a spy, a traitor, the Obama Administration strives to control the discourse where it can communicate what kinds of behavior will not be tolerated – those which challenge the government’s authority to erect a ubiquitous surveillance apparatus, carry out extrajudicial killings, and execute undeclared covert wars- and who will be punished without recourse to civilian courts of law.

The US mission to destroy Edward Snowden and anyone else who tries, even thinks of exposing the dark machinations of power by which it seeks total control, reveals that the impious ends towards which the state and corporate entities it has incorporated reach. Consolidating power and protecting those commanding it from scrutiny is the supreme goal of the Administration. That the US is grounding planes of 29 year-old hackers, spying on allied nations to glean positions on trade deals and persecuting whistleblowers with the same fervor with which bad terrorists are terminated and good terrorists protected is suggestive of the classic hericlitean paradox of opposites. What the Obama Administration believes is required to strengthen national security, protect America, is a tightening on all levers of social control. This goes to show just how far the Administration has gone in its lust for domination. It shows how out of control that seems to those questioning living as subjects under its violent power.